Can just war theory delegitimate terrorism?

Jus ad bellum

Just war theory begins with a set of conditions determining the very justifiability of the resort to war: on this view, the initiation of war calls for thorough argumentation (and in current international law, for explicit UN approval via a Security Council resolution as well). As with other areas of just war theory, there is considerable dispute concerning the scope of application of jus ad bellum rules but, by and large, they are commonly taken to apply only to the actual resort to war, following which war is to be regulated by the rules specified under jus in bello – or conduct in war. ¹⁵

Recall now Michael Walzer's famous phrasing: ‘War is always judged twice, first with reference to the reasons states have for fighting, secondly with reference to the means they adopt.’ Stated at the opening of Walzer's discussion of Jus ad bellum rules, these words tell also of another story: although not always explicitly spelt out in legal documents or the more theoretical literature, the implicit assumption made in almost all discussions within the just war tradition is that the relevant parties to an armed conflict are states. ¹⁶ Now, given that just war theory far precedes anything even remotely similar to the ‘state’ as we now know it (or indeed, as it has been known in the recent past), the crucial, substantive point here is clearly not that a particular agent is internationally recognized as a ‘state’. ¹⁷ Instead, it is that the relevant agent is widely recognized to exercise effective authority (i.e. law and order) within a particular society and over a particular territory and so, is ascribed what is effectively necessary to maintain such authority – namely, the right to protect its authority against possible threats from without. ¹⁸

Be that as it may, effective authority is today internationally associated with statehood and so statehood has come to be seen as a precondition of the right to engage in war. Put otherwise, today, only UN members can legitimately engage in war, and as it is only states that are eligible for UN membership, statehood effectively becomes a precondition of the right to engage in war. It follows that the main hurdle for non-state agents' involvement in legitimate war is, at present, not so much the terminology in use, as the practice that formed in its shadow – namely, the requirement that the initiation of war be approved by the UN and similar international institutions, membership of which is exclusive to states. Indeed, although non-state agents may sometimes win such approval, the condition of their doing so is invariably that their case be presented by a state – which of course implies that they should have already won that particular state’s or states' approval beforehand. So, looked at any way you will, the basic condition for a war's legitimacy within the just war theory framework is what is perhaps best described as de facto authority: already established and internationally recognized power. ¹⁹

Until very recently, the only cause with reference to which a war could be considered justifiable was self-defense, where ‘defense’ referred to a state's territory or sovereignty. ²⁰ In recent years, however, there has been increasing pressure to recognize humanitarian crises (e.g. massacre, starvation, mass population transfers, etc.) as justifiable causes for international intervention and so, by implication, for war. For present purposes it suffices if we reiterate that, where such occurrences are the cause for armed intervention, it is not only states that must raise the matter and then also give approval, but states too whose intervention will, or will not, then be approved.

Be that as it may, for the case for a war to be argued, and a war to be deemed ‘just’, three conditions must be shown to have been satisfied: proportionality; reasonable hope of success; and necessity, or last resort. Proportionality prescribes that the harm a war sets out to respond to or avert not be outweighed by the harm it inflicts. Put another way, a war is just only if it can be persuasively established that it will not merely reverse or correct a wrong already suffered but have the further effect that the harm inflicted will not exceed the harm to be averted – namely, the harm likely to have been inflicted if war were not waged. Reasonable hope of success refers to the reasonability of correcting the relevant wrong or harm by means of violence first, and to the balance of powers involved second. Put another way, for war to be justified it must seem to be likely to produce the desired effect. ²¹ Finally, last resort or necessity – the equivocation here seeks to indicate that, although the justifiability of war is commonly conditioned on the exhaustion of all possible alternatives, in reality this is normally an impossible condition to meet. Hence, war can only be shown to be necessary (rather than unavoidable), which in turn obtains where there is good reason to believe that no alternative to war would have an equally high probability of achieving a just aim. ²²

Jus in bello

The set of rules applying to the conduct of combatants during wartime and known under the name jus in bello encompasses several distinct considerations – necessity, proportionality and discrimination. ²³ Necessity refers to a relevant act's relation to victory. Hence, to be just, combative action must be shown to have been necessary to the speedy resolution of a conflict or more specifically, to the termination of warfare. ²⁴ Proportionality denotes the relation in which the harm caused by wartime activity stands to the harm prevented thereby: to be just, the harm spared or averted must clearly outweigh the harm caused. Discrimination, lastly, refers to the care with which violence must be exercised: to be just, combative action must be strictly discriminate, carefully distinguishing between those who may, and those who may not, be legitimately targeted in wartime.

The principle of distinction ²⁵ is unquestionably the most central, as well as most controversial, element of jus in bello (and perhaps of just war theory at large). As it is also the element most directly referred to in the context of terrorism, it seems worth paying a little more attention to it here. Traditionally, the distinction was drawn between soldiers and others in the chain of command on the one hand, and all others on the other. The common explanation for this refers to self-defense and consists in the argument that a person is justifiably liable to attack only when he or she has actively lost or forfeited the right to life – and so, their immunity against attack. It follows that, what calls for explanation is not the immunity of non-combatants but rather, combatants' lack or forfeiture of such immunity. ²⁶ On this view, then all people are naturally or intrinsically immune to attack unless and until they have actively lost such immunity – moreover, lost it through some concrete, clearly specifiable action of their own. But as already said, there are other possible groundings for this distinction, and each reflects somewhat differently on the precise definition of the relevant categories (i.e. liable vs. immune). ²⁷ In the common parlance, however, the distinction is almost invariably known as that between combatants and non-combatants or the principle of non-combatant immunity, and it is in this way that it is referred to here. On this view, ‘combatant’ is to be taken in the broadest possible sense, to include all and any members of the armed forces as well as those otherwise directly related to the war effort. ²⁸

To sum up, just war theory represents an ongoing attempt to make sense of, and impose order on, the eruptions of political violence that have always been part of social life. Its revival in recent decades, in the wake of the Vietnam War and still more recently, following the explosion of political violence in the 1990s and 2000s, may be seen to reflect a growing confusion in the face of new forms of armed conflict and a tradition whose terms are increasingly felt to have become outdated. ²⁹ Let us now turn to consider in more detail why the just war theory framework fails to capture the complexity of recent political violence and, especially, terrorism.

Peace/War

Thomas Hobbes – the 17^th century philosopher who claimed to have been pushed out of his mother's womb by the panic caused by the Spanish armada, only to then find himself caught up by one war after another – famously defines war as ‘the time during [which] men live without a common power to keep them all in awe.’ And yet, ‘Warre consisteth’, Hobbes clarifies,

… not in Battell onely, or the act of fighting, but in a tract of time, wherein the Will to contend by Battell is sufficiently known: and therefore the notion of Time, is to be considered in the nature of Warre; as it is in the nature of Weather. For as the nature of Foule weather, lyeth not in a showre or two of rain; but in an inclination thereto of many dayes together; So the nature of War, consisteth not in actuall fighting; but in the know disposition thereto, during all the time there is no assurance to the contrary. All other time is PEACE. ³¹

Three and a half centuries on, it seems clear that there has been a deep change in our understanding of peace – in fact, of peace, of war, and of the balance between them too. ³² For what most people seem to take for granted today – indeed, seem to consider the normal, ‘natural’ condition of everyday life—is peace, not war. ‘Peace’ is the rule, the normal, ‘natural’ condition of the world, ‘war’, the exception, the ‘abnormal’, ‘unnatural’ disturbance, interruption, perhaps even aberration, whose occurrence brings everything to a standstill. But is this true? Does either image – of peace or of war – accurately represent our everyday life? Indeed, does either image accurately represent the daily life of soldiers or civilians in the various ‘battlefields’ of the 21^st century – think of Afghanistan, Iraq, or Israel, to cite only the most obvious, seemingly clear-cut cases?

Surely not. When people are regularly requested to – indeed, automatically do – open their bags for routine security checks at the entrance to every second shopping mall, cinema, university or governmental office; when cameras, concealed and apparent and closed-circuit videos are scattered everywhere, from high-streets and cinemas to banks and airports, observing and documenting our every move; when the choice of our children's schools, the next holiday destination, or casual future outing, are made in close consultation with the latest news update and routine security cautions issued by governments across the globe – in these circumstances it is difficult to think of our ‘normal’, everyday condition as one of ‘peace’. And of course much the same goes for the lives of the battalions of soldiers positioned in Baghdad, Kabul, Hebron and the many other cities, towns and villages where they spend their days among civilians ‘going about their ordinary business’, ³³ while they themselves are fully shielded and armed, alertly expecting the next ‘disturbance’. Is it war or peace that they experience? And if war, can it be peace that those all around them experience – indeed, experience parallel to, and simultaneously with them, in ‘their’ war?

Three and a half centuries after Hobbes, we might have the feeling that there is a deep change in our understanding of peace – indeed, of peace, of war, and of the balance between them as well – where in fact most of what has changed is our feeling, and our usage of the terms: our ‘peace’ now replacing Hobbes's ‘war’ – consisting, let us recall, ‘in a tract of time, wherein the Will to contend by Battell is sufficiently known’ and where ‘there is no assurance to the contrary. All other time is Peace.’ What other time is there? What is peace, today?

The point of the consideration above is not to deny or contest the meaningfulness of either peace or war in the 21^st century; nor – in fact, still less – is it to challenge the deep and real differences between the quality of life in the Western hemisphere, in ‘first-world’, ‘developed’ countries, and those lived on the other side of the globe, in ‘third-world’, ‘under-developed’ countries. ³⁴ It is to point out, rather, that the distinction between ‘peace’ and ‘war’ is no longer necessarily related to this difference (in people's quality of life). In fact, to the extent that it is at all clear and sensible to us today, the distinction between war and peace is more fictive than factual: more conceptual than sensible. In short, ‘war’ – in the sense of the open, explicit, constant, and active deployment of violence by political bodies to political ends – is no longer what it used to be and yet, we keep thinking of it, referring to it, and using it, as if it were. And of course, if war is no longer as it used to be, then the same goes for peace – its constant, necessary companion or shadow, its ‘significant other’, if you will.

The changed face of war, then, inevitably entails also the changed face of peace. Or perhaps it is the other way round – perhaps it is the nature of peace that altered first and war merely followed suit, adapting and adjusting itself. But temporal order is not particularly important here. What is important, rather, is to acknowledge that there has been a substantive change in the way in which we live ³⁵ and, consequently understand the experiences of ‘peace’ and ‘war’, while the terms themselves, and the entire conceptual framework that informs them, have remained static, practically untouched. Hence, what is currently analyzed and discussed in the just war literature has come to be increasingly distant and detached from what is actually lived and experienced in everyday life. The combatant and the engaged as well as the non-combatant and unengaged are all caught up in a confused reality of political violence. The gap between theory and practice, or thought and action – which is always there – has grown so deep and wide, that it can no longer be imagined away or bridged over by the force of will, and words, alone.

State/non-state

Much of current just war theory revolves around the state – indeed, ‘The State’ as both an abstract notion and an actual, practical institution. Of course, what is interesting and curious about this is that, as mentioned before, much of just war theory precedes the emergence of not only the state but even, sovereignty. Indeed, although most historians tend to trace the origins of just war theory as currently known back to the Middle Ages and to various ecclesiastical debates, the discussion of war in terms of justice and the moralization of violence more generally goes well beyond. In fact, it is difficult to think of any human society or human association in which the recourse to arms was, or could be made, without recourse to reason – and so, to some sort of argument and justification as well.

And yet, much of mainstream, current, just war theory (as distinguished, that is, from its rapidly evolving ‘radical’ alternative, most commonly associated with the work of Jeff McMahan ³⁶ ) is practically inconceivable without ‘the State’ – the state being not merely its single proper subject, but its single proper object as well. Thus, as seen above, not only the very resort to arms is gratuitously restricted to states in just war theory: the causes by reference to which such resort might be justifiable explicitly turn on the conditions of statehood – namely, territorial integrity, sovereignty, and the monopoly over the legitimate use of violence. In fact, most of the discussion conducted within the framework of just war theory and in its terms takes as given the relation between these conditions on the one hand, and the causes of political violence on the other: it assumes almost unquestioningly that impinging on any of these conditions constitutes a just cause for war. Of course, there is then much discussion and often also very deep questioning of the particular instances that might credibly count as constituting, or threatening such impingement – but the relationship itself, between the conditions of statehood and the justification of political violence, is only very rarely the object of such probing and questioning. ³⁷

Further: although there is growing recognition of the tight intertwining of political violence and the conditions of living of non-state collectives – be they religious, ethnic or cultural-linguistic groups – these conditions themselves are only very rarely taken to constitute a just cause for political violence in the literature. Of course, there are many different reasons for this neglect or oversight – not least perhaps, the actual superiority of states relative to those collectivities. But this is precisely the point: Why should the state be given automatic preference over non-state agents in all and any such contexts? Why should a state's protection of its territorial integrity, for example, precede and so – in effect – also outweigh a non-state collective's right to self-determination, when the latter's use of violence is credibly established to be a last resort? To be sure, this is not to say that the balance between states and non-state agents should be reversed when it comes to their respective recourse to arms and violence. It is to say rather, that there is such imbalance, and that this imbalance has its own, very clear consequences for the discussion conducted within the just war framework. Indeed, that and this too: that the tradition is resolutely statist not only in that it is premised on the existence of states and on their normative preference over all other, possible political frameworks – but also in that it is framed with a view to ensuring and consolidating their dominance. Considered against this background, however, it should come as no surprise that just war theory does not allow non-state agents any real access to its conceptual resources or, therefore, to a recognition of the potential justice of their resort to violence. ³⁸

Combatants/non-combatants

The distinction between combatants and non-combatants or, the principle of non-combatant immunity as it is also often referred to, is perhaps the clearest, most obvious reflection of the resolute statism of current just war theory as pointed out above. For in seeking to exclude non-state agents from the domain of justifiable political violence, the ability to draw and maintain a clear-cut separation between combatants and non-combatants – most conveniently reflected in soldiers' uniforms, orderly army barracks and the like – becomes the condition of just combat. Even if they were to pass the entry test of ‘just cause’ for war, then, very few, if any, non-state agents could then pass also this next hurdle – namely, the exemption from the general prohibition against intentional killing enjoyed by combatants with respect to other combatants in wartime or, in shorthand, the right to kill their opponents. ³⁹

Given the increasing prominence of non-state groups in modern circumstances of political violence, the distinction between combatants and non-combatants is effectively crumbling. Interestingly enough, it is not that the rule itself is no longer insistently asserted and argued for by theoreticians, philosophers, and legislators on the one hand, nor that it is not sufficiently discussed and justified by commanders and soldiers, as well as various NGOs working in battle zones, on the other. Instead, it is that in reality the distinction between combatants and non-combatants is increasingly outweighed or overlooked on the battlefield itself. In fact, one possible reason for this may well be that there is hardly anything like a clear battlefield anymore. But there are plenty of other reasons too – e.g. the availability of nuclear weaponry as well as the consequent effective acquiescence in the idea of nuclear deterrence; the development of ultra-precise weaponry the use of which has pushed the distinction between intentional and unintentional harm to the limit; the growing availability of arms on the ‘open market’; and of course the growing demand for political independence and autonomy. Be that as it may, the bottom line is that in practice, the rule of distinction has almost always been the first victim of most recent violent political conflicts, its widespread acceptance in theory notwithstanding.

Indeed, the grounds of the distinction are far from evident. The link between democracies and war is of long standing sociological interest. ⁴⁰ Famously, the gist of the argument is that the more democratic a society becomes, the less it inclines to engage in war. Supposedly, part of the reasoning behind this notion is that, once the clear-cut distinction between sovereign, people, and army is gone, the decision to wage war is dwelt upon much seriously than when the distinctions still hold. Whether this is solidly grounded in fact is still a matter of serious dispute. In fact, it seems to me that there are at least as good grounds on which to make the opposite argument – namely, the increasingly recognized linkage between mass-democracy and nationalism on the one hand, and democracy and populism on the other. ⁴¹ But this is perhaps beside our immediate point here and anyway, is certainly more a matter of fact than of principle. Closer to the latter, it seems to me quite problematic to keep insisting on the distinction between combatants and non-combatants, when it is the people who constitute both, and the sovereign as well. Put another way, in the formative days of just war theory, wars were primarily the business of sovereigns, not of the people. Keeping the people, or non-combatants, out of harm's way would thus have made good sense – indeed, perhaps not only ethically, but operationally and economically as well. Since then, however, and over the past half century most explicitly, the people have become the literal sovereign of most states – or anyway, of most states in which the laws and customs of war are taken seriously at all.

The implication of this is clear. Over the past half century, civilians are not only nominally, but also actually increasingly involved in and hence, responsible for, the wars fought in their name and on their behalf. Citizens' taxes fund those wars and so, make them possible (or not) – but well beyond that, too: almost all recent instances of violent political conflict have been profoundly influenced by public opinion – and not only through citizens' voting for war-mongering, or peace-seeking parties, but also more implicitly, through demonstrations, the popular press, financial donations, and the like. Hence, the real question posed by the current rule of distinction is not so much how it might be more effectively imposed, notwithstanding the evident difficulties its application encounters on the ground – but rather, whether it still makes sense, in its current formulation, and on its current grounds?

To be sure, there will always be some categories of people whose immunity to attack cannot be seriously challenged on any plausible account – children of course, being the paradigm example relative to which moreover, others may then be reasonably added. ⁴² Again, the point I wish to make here is not that we should do away with a principle of distinction altogether – far from it: it is that a principle of distinction is all too crucial an element of a theory of just violence for us to be willing to compromise on its applicability. If the principle is increasingly violated and breached, then there must be a problem with its applicability, and if there is such a problem, it must be somehow redrawn closer to where the problem lies. ⁴³ As it now stands, it is perhaps not all that surprising that it repeatedly fails to be adhered to.

Just cause for war

To take the distinction between war and peace first, and the issue of just cause for war in particular, I wish first to consider Jeff McMahan's ongoing and extensive contribution to the discussion ⁴⁴ – although it is important to note that McMahan sees himself as working within a looser, and more generic version of the tradition than the one criticized above. ⁴⁵ McMahan's main interest has always been with the ethics of killing. In the context of war, this means that most of McMahan's writings turn on the permissibility of killing in war or (more loosely put) on the persistent attempts of just war theorists to create an effective firewall between the rules known under the title jus ad bellum and the rules known as jus in bello. In a nutshell, McMahan's argument is that the distinction between those who may, and those who may not be legitimately attacked in wartime cannot be drawn relative to their formal standing – which is to say, in effect, that the mere association with, or dissociation from, the armed forces (namely, being combatant or non-combatant) cannot suffice to legitimate a person's liability to being killed. McMahan's reason for objecting to this criterion is that it entirely disregards the individual's responsibility for his or her choices and actions, and so fails to adequately acknowledge moral agency.

On McMahan's account, the main issue in determining an individual's liability to attack is her standing vis-à-vis the act with respect to which war was initiated, or indeed continues. So if war was initiated by an act of unjust aggression, if it is continued without just cause or, alternatively, if it was initiated in response to a humanitarian crisis, it is the moral nature of the threat that determines its individual agents' liability to attack. A person becomes liable, that is, if he or she is responsible for an unjust threat or for a threat of unjust harm. So whoever poses such threat or partakes in its posing is on the unjust side – and so, effectively, partakes in an unjust war; she must herself be considered an unjust combatant. As such, in turn, she immediately forfeits her immunity against attack, and so of course, her right to self-defense as well. Whatever she does subsequently, or is done to her, is effectively irrelevant to this basic, preliminary point: her participation in an unjust war is unjust and so, morally criminal. ⁴⁶ Of course, how they will act subsequently does make a difference – that is, an unjust combatant may combat justly, just as a just combatant may combat unjustly. But this difference does not pertain to, or reflect on, the main question at hand: are they just or unjust combatants to begin with? Having taken part in an unjust war, they are themselves unjust combatants, and as such, they have lost their right to self-defense. As indicated above, the immediate upshot of this, clearly iterated and reiterated by McMahan in various connections, ⁴⁷ is that the traditional, almost consecrated separation of jus ad bellum and jus in bello can no longer be maintained. Whether there is or is not a just cause for war will immediately determine not only the justice or injustice of war itself, but also the justness or lack of justness of those partaking in it – namely, the combatants themselves. This is a proposition which for many obvious reasons has been traditionally, and insistently, resisted in the just war tradition over the centuries.

In light of the arguments I have developed above, McMahan's critique of just war theory may be seen to overlook the social complexity in which political violence typically erupts, and the fading distinction between war and peace in particular. Hence, McMahan seems to downplay or wish away the fact that wars do not normally erupt out of the blue; that they have deep social and political origins; that the decisions pertaining to the waging of war are taken sequentially rather than all of a sudden – indeed, frequently away from public scrutiny; and that the possibility of conscientious objection is not always open – or practically bearable in terms of its social and personal costs. Furthermore, he seems to assume that whether a war is just or not is evident to every informed observer – indeed, that most civilians and soldiers are such observers. In real life, however, matters are surely very different. Most wars have historically been in the making for very long periods of time, and very few, if any, have been waged without deep debate and contestation, before, during, and after actual combat. ⁴⁸ As argued above, if the distinction between war and peace, as that between just and unjust causes for war, is becoming increasingly blurred, then such clear-cut distinctions between culpability and responsibility (as posed by McMahan) must likewise be blurring.

Further, having detached jus ad bellum from jus in bello in the manner specified above, McMahan proceeds by distinguishing what he calls ‘the deep morality of war’ from the ‘laws of war as it is actually fought’. ⁴⁹ The argument about just war and the right of self-defense, he contends, concerns the former, not the latter. ‘It is possible’ he explains, ‘that the traditional rules of jus in bello coincide rather closely with the laws that would be optimal for regulating the conduct in battle.’ After all, these rules ‘have evolved over many centuries and have been refined, tested and adapted to the experience of war as the nature of war has itself evolved.’ On this pragmatic basis, he then proceeds to advocate continuing allegiance to the laws of war as promulgated. However, by so doing, he leaves us dependent on a theory whose rather substantial faults and failures he has just exposed and established, knowingly sacrificing what he considers to be just to what he concedes to be both unjust and increasingly ineffective. To be fair, one of the ‘long-term aims’ of McMahan's ongoing, systematic contribution in this area is clearly to ‘create institutions that will enable us to reform the law in such a way that it becomes more closely congruent with morality’. ⁵⁰ But of course the main thrust of the critique of his approach that I have advanced above is that the law should be reformed in such a way that it becomes more congruent with the present conditions of political violence. ⁵¹

Justification and terrorism

In his 2004 article, ‘Terrorism, Justification, and Illusion’, ⁵² Saul Smilansky appears to set out to test the framework of just war theory against the possibility of justifying political violence, aka terrorism – which makes it of obvious interest to our present concerns. Smilansky defines terrorism (following Coady) as ‘the intentional targeting of non-combatants (and not in the context of crime or the like)’. ⁵³ He then goes on to further narrow his consideration to the ‘members of small or weak groups that lack the capacity to field an army and engage in warfare’, thereby evading the subsequent (and clearly thornier) question of state-terrorism. Having set up the arena in this way, Smilansky proceeds to explicitly reject what he sees as the knee-jerk, absolutist denunciation of terrorism and so, seemingly opens the door to a genuinely serious consideration of the possible justifiability of terrorism in certain circumstances.

Smilansky turns to examine in some detail three particular ‘test-cases’ which he perceives as ‘the most prominent ones of the post-Second World War era’ ⁵⁴ – namely, the IRA in Northern Ireland; the Palestinians against Israel; and Al Qaeda. Following some elaboration, he concludes that all three fail to pass the crucial entry-level test of ‘just cause’ (for armed combat) and indeed, that they all ‘lie very low in any plausible scheme of moral justification’. ⁵⁵ Still, he does not abandon the attempt to find grounds for the justification of terrorist acts on this account alone. Instead, he goes on to consider some hypothetical situations (e.g., massacre; systemic oppression; severe deprivation; etc.) under which terrorism might be justifiable, at least insofar as ‘just cause’ is concerned. ‘The surprising fact’ he argues, is ‘how relatively uncommon terrorism has been in such contexts… Terrorism has usually not targeted the worst [i.e. tyrannical] but rather the best [liberal democratic] type of regimes in the world.’ ⁵⁶ Having asserted this, he moves on to contest the connection between terrorism and ‘justification’, arguing that it is considerably looser than is commonly assumed and further, that terrorism is not really about justice, reason, or morality at all. ‘It is not so much substantive moral concerns – with massive danger to life, collective self-determination, personal freedom, basic cultural and religious rights, lack of alternatives, or the like – that lie behind… terrorism, but the ghosts of history, the depth of ill will, and the temptations of power.’ ⁵⁷ The possibility that terrorism might be genuinely just – or indeed, that its perpetrators are at all concerned with this, is therefore, by Smilansky's account, mere ‘illusion’.

Still, giving his opponents the benefit of the doubt, Smilansky presses on, to consider the plausibility of what he calls ‘the Anti-oppression Exception’ – namely, the exception from strict adherence to what he also calls the PNI (Principle of Non-combatant Immunity), supposedly claimed where genuine, deep oppression does obtain; where all other possible resorts have been tried and failed; and where the ‘just cause’ condition is therefore satisfied. He cites the radical asymmetry of resources available to states and to non-state combatants as the most plausible argument for excluding terrorists from strict adherence to the PNI. The terrorists' argument, he suggests, might look like this: ‘give us equal share of tanks, missiles, and warplanes, and we will fight only combatants and forgo terrorism. Until you do so, however, the only way we can defend ourselves and combat oppression is by attacking the oppressors at their weak point, namely by targeting their non-combatants.’ ⁵⁸ Having put the matter thus, Smilansky immediately proceeds to argue that the inevitable consequence of accepting this line is the surrender, and hence effective collapse, of the PNI altogether. For ‘if we leave the PNI behind, there is no reason why counter-terrorist activities oblivious to PNI could not be defended. If the terrorists are killing non-combatants, counterterrorist activities can bring forth similar claims for ‘necessity'.’ He concludes that ‘the general question is simply whether the pursuit of just aims may proceed at the expense of PNI’, to which he interjects a resounding No: ‘There is nothing unique in the struggle against oppression by terrorists representing weak groups that can justify the principled break with PNI.’ ⁵⁹ It follows according to Smilansky that the PNI should be steadfastly upheld and enforced even at the cost of prohibiting what he himself concedes is justified terrorism – or perhaps more akin to his own terms, terrorism that constitutes justified resistance to severe oppression, or justified political violence. Rather than effectively test the framework of just war theory against the possibility of justifying political violence (aka terrorism) then, Smilansky ends up applying the theory to test the justifiability of political violence.

Going back to the arguments developed above, Smilansky's phrasing of the terroristic position seems to me to capture the gist of the problem so well and so accurately, that his subsequent rejection of it – on the basis of not meeting the PNI – merely underlines the extent to which it effectively throws oil on the fire. For by demanding that non-state agents adhere to precisely the same norms and standards as those to which states are required to adhere – in a context where these distinctions are already problematic – we would effectively allow the already well-equipped and heavily-armed to maintain their advantage, rather than level the playing field. Indeed, far from correcting an already existing and radical asymmetry, this demand for symmetry of standards merely exacerbates the asymmetry of resources and so, worsens the condition of those already worse off. ⁶⁰ This takes us right back to the need to redraw the distinction between those who may, and those who may not, be the legitimate targets of attack in armed conflict in a way that would reflect the current realities of political violence with all the imbalances and asymmetries which the violence sets out to correct in the first place. ⁶¹

*

Before rounding up this consideration of alternative critiques, it is worth noting that, although both McMahan and Smilansky have initially set out to challenge the traditional tenets of just war theory (albeit different tenets, on different grounds – and to different ends perhaps, too), both finally wind up effectively affirming it. Does this suggest that their criticism was, or is ungrounded – or, conversely, that they found the theory itself to be better, more just or fair, than they were initially willing to recognize? I think not – indeed, I think neither. Rather, the abundance of cases in which we are willing to live with half-truths (if that) suggests, I believe, that when the stakes are particularly high, as they surely are in this case, the resistance to change is likely to be as high – in particular when our own interests are at stake, and further, when the nature of the relevant changes is still so elusive and debatable. We cannot – but perhaps also (morally) should not – let go of one bird we already have in the hand, for two in the bush – not even if we know that they are there, nor even if we do all that we can to capture them. So the conclusion, that present qualms do not lead to concrete proposals for change, should not be taken for more than just that – although this, perhaps, too: we ought to keep trying, doggedly searching for a better, more finely attuned (or altogether different) framework from within which to think of political violence and the conditions of its possible justifiability. ⁶²